The University Startup Company Law Firm

www.rothmanandcompany.com

 steve@rothmanandcompany.com

(310) 993-9664

Stephen P. Rothman, Esq.

1

Topics Business Acquisitions Generally – Benefits and Risks Key Differences in Public Company Acquisitions Board of Directors of Target Deal Protection No Recourse Post Purchase Structural Options (Tender Offer v. Merger) Employment Antitrust Hart-Scott-Rodino Act SEC Process Wild Cards

2

3

Some Benefits of Acquisitions• Revenue Synergies

– Getting New Products to Sell to Same Customers

– Access to New Customers for Existing Products

• Acquire New Technology

• Acquire Brand• Better

Management Extends Reach

• Cost Savings– Eliminate duplicate

staff (aka “rationalize the personnel structure” aka “fire people”)

– Add new revenue to existing fixed cost structure; utilize excess capacity

• Shhhhhhh!

4

Some Risks of Acquisitions• Employee

Departures• De facto retirement• Hidden Liabilities• Hidden Negative

Trends in Business• Culture clash• Distraction by

Purchase / Sale Process

• Transaction Expenses – Busted Deals

• Government Challenge

• Bidding War / Lack of Discipline / Overpaying

• Excess Leverage

5

Key Differences in Public Company Acquisitions

• Separation of Ownership and Control– Target Board / Shareholders

• No Recourse Post Sale• Overlay of SEC Filing Process• Operating in a Fish Bowl• Possibility of Hostile Bid• Accentuated Time Pressures

6

Board of Directors of Target

• Fiduciary Duties– Duty of Loyalty– Duty of Care

• Liability Exposure• Smith v. van

Gorkom– Del. Sup. Ct. 1985– Minimal time– No investment

banker• Fairness Opinions

• Management Buyouts

• Equal Playing Field• Auction v.

Negotiated Sale• Market Test• Fiduciary Out

7

Deal Protection• Break-Up Fee

– Definition of Triggers• Topping offer• Breach of agreement• Regulatory Risk

• Option on Principal Stockholder Stock• Impermissible “Lockup” Option on

Crown Jewels

8

No Recourse Post Purchase• Representations and Warranties

• Really Just Closing Conditions• Due Diligence Process

– Financials– Projections– Contingent Liabilities (customs case;

others?)– Intellectual Property– Tax

9

Structure 1 – Tender Offer– Speed

– 20 Business Day Minimum– “Offer to Purchase” / Newspaper Ad– Securities & Exchange Commission 14D Rules– Material Amendment Requires Additional 10 Days– Speed Advantage Lost if Not All Cash Deal

– Second Stage Merger• 90% - Short Form• Otherwise Shareholder Approval

– Players• Dealer – Manager (investment banker)• Depositary

10

Structure 2 - Merger– Slower– Proxy Statement

• Proxy Statement• File and Wait 20 Days for Prior SEC Review• Circulation Followed by Solicitation• Hire Proxy Solicitors• Cash or Stock Consideration

11

Employment Matters• Stay Bonuses• Treatment of Stock Options

– In / Out of the money– Acceleration of Vesting

• Single / Double Trigger• Total / Partial / None• Terms of Plans

• Integration– HR; Benefits; Payroll

• Layoff Costs?– WARN Act– Severance Policy

• Incentives – Absence of Stock Options

12

AntitrustClayton Antitrust Act of 1914

Prohibits mergers and acquisitions where the effect may substantially lessen competition

Enforced by the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice.

13

Hart-Scott-Rodino Antitrust Improvements Act of 1976

• Difficulty of Unscrambling the Egg• Requires premerger notification of the FTC and

Justice Department• Buyer and seller ultimate parent entities (Seiko

Epson) both report revenues by SIC code• revenues from all lines of commerce with

respect to operations in the United States• Government can look for overlap• not limited to the revenues that are in the

same industry as the acquired entity

14

H-S-R Act• Also file market and competition

analyses• Pre-planning; possibility of

requesting a meeting with government

• Approval process may require divestiture of parts of the businesses which may cause anticompetitive actions

15

H-S-R Act Filing Thresholds

Either:• Transaction over $226,800,000 (regardless

of size of person)Or:

• Both size of person and size of transaction tests met

• Tests applied to “Ultimate Parent Entity” – top in chain of 50% + ownership

16

H-S-R Filing Thresholds Size of Parties

• UPE of one party has total assets or total sales of at least $113 million; and

• UPE of other party to the transaction has total assets or total sales of at least $11 million

• InFocus had total assets of around $264 million at December 31, 2005 and total revenues of $532 million in 2005

17

H-S-R Filing Thresholds Size of Transaction

• exempts any transaction involving under $56 million

• It does not seem very likely that InFocus transaction would be under that threshold.

• Based on 39,799,378 common shares outstanding as of August 1, 2006 per InFocus 2Q Form 10-Q, and current stock price of $2.59, the total market value of the company is around $103 million.

18

H-S-R Act Filing fee

• $45,000 if the transaction size is under $113,400,000,

• $125,000 if the transaction size is over $113,400,000 (but less than $567,000,000)

• Imposed by law on acquiring party, but you may be able to negotiate a split

19

H-S-R Act Filing

• responsibility of the ultimate parent entity

• that entity is permitted to designate another controlled entity (e.g. Epson America, Inc.) to make the filing

20

H-S-R Act • 30 day waiting period (from when both

buyer and seller have filed)• 15 days instead of 30 for tender offer• Waiting period runs concurrently with proxy

solicitation for approval by the target shareholders, or a tender offer for the target shares.

• Can request early termination of the waiting period

• Waiting period can also be extended by second request

21

DOJ / FTC Merger GuidelinesProduct market

defined as narrowest set of products and geographic area for which a sole producer could raise prices without buyers shifting to other products

Market concentrationthe number of firms in a markettheir respective market shares.

Herfindahl-Hirschman Index ("HHI")sum of the squares of the individual market shares of all the participants

22

HHI IndexPost-Merger Below 1000

Unconcentrated - no problemPost-Merger Between 1000 and 1800

Moderately concentrated. Merger increasing HHI less than 100 ok. Merger increasing HHI over than 100 will get

scrutinized. Post-Merger Above 1800.

Highly concentrated. Mergers producing an increase in the HHI of

less than 50 points okMergers producing an increase in the HHI of

more than 50 points presumed likely to create or enhance market power

23

SEC Process• Tender Offer

–No SEC prior review–20 business day rule–10 day extension for material

changes• Merger

–File preliminary and wait 20 days

24

Wild Cards• Hostile Bid

– Defensive tactics– Litigation

• Government Antitrust Action• Shareholder lawsuit• Material adverse change – contingent

liabilities; changes caused by deal• Texas Instruments LIcense

25

Stephen P. Rothman, ESQ.ROTHMAN AND COMPANY, P.A.

www.rothmanandcompany.comE-MAIL: steve@rothmanandcompany.com

(310) 993-9664

Questions?